Sinebare v Raminai [2023] PGNC 498; N10664 (14 December 2023)

N10664

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 64 OF 2021 (IECMS)

BETWEEN:
DR MUSAWE SINEBARE PhD, M.Info Tech, M.Ed, B.Ed as Vice Chancellor of the University of Goroka
First Plaintiff

AND:
PROFESSOR JOSEPH SUKWIANOMB as Chancellor and Chairman of the Council of University of Goroka and on behalf of the Council Members DR. JULIAN KUMAN, LAWRENCE TITIMUR, DR. ALFRED TIVINNARLIK, MIRI SETAE, MS. TAIS SANSAN, LESLIE HOFFMAN, STEVEN RERE, CHRISTOPHER ASA, GAYLE TATSI, MS MARIA KOKOP
Second Plaintiffs

AND:
HON. WESLEY RAMINAI MP, as Minister for Higher Education, Research, Science and Technology
First Defendant

AND:
PROFESSOR FR JAN CZUBA, as Secretary for Department of Higher Education, Research, Science and Technology
Second Defendant

AND:
JOE WEMIN as Chancellor of the Interim Council of University of Goroka
Third Defendant

AND:
DR. GORU HANE-NOU, TAKELA TUNA, JOHNSON KENT WANI, NELSON AUWO, ROSE KOYAMA, JOHN SARI, STEVEN NUKUITU, ROBIN GUEBIANBAZZYNU, WAYNE JOSEPH, LAVERT GANINO as Interim Council Members of the University of Goroka
Fourth Defendant

AND:
DR. TENG WANINGA PhD, M.Ed Hons, B.Ed, as Acting Vice Chancellor of the University of Goroka
Fifth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Dingake J
2023: 23^rd November & 11^th December

NATIONAL COURT – Practice and Procedure- Plaintiff granted leave but before his substantive review application could be heard his contract of employment expired-whether Plaintiff lost locus standi to pursue the judicial review – held Plaintiff lost locus standi – proceedings dismissed.

Cases Cited:
Green Wood (PNG) Ltd v Pulie Anue Timber Co. Ltd [2023] PGSC 9; SC2361
Min Eremuge & Ors v Joseph Apa & The State [2023] PGNC 421; N10572
Rebeca Organn Kiage v Ronald Meketa & The State [2023] PGNC 230; N10315
Issac Lupari v Sir Michael Somare [2008] PGNC 121; N3476
Mison Asiki v Manasupe Zurenuoc & The State [2005] PGSC 27; SC797
Henry Wavik v Martin Balthasar [2013] PGNC 90; N5272
Michael Mondia v Richard Sikani [2007] PGNC 107; N3256

Counsel:
Mr. Tony Waisi, for the First Plaintiff
Mr. Desmond Kipa, for the Third, Fourth and Fifth Defendants
Mr. Roy Yomilewau, for the Sixth and Seventh Defendants

RULING

14th December 2023

1. DINGAKE J: This is my ruling with respect to the application brought by the Third, Fourth, and Fifth Defendants (“The Defendants”) by way of Notice of Motion filed on the 27^th of June 2023 that the Plaintiff’s judicial review proceedings be dismissed for lack of standing to maintain or sustain the proceedings.
   
2. The Plaintiff applied and was granted leave by this Court on the 28^th of April 2023 to bring judicial review proceedings to challenge his suspension as the Vice Chancellor of the University of Goroka and appointing the Fifth Defendant, Dr Teng Waninga, as Acting Vice Chancellor.
   
3. The Defendants Notice of Motion referred to earlier (Document No. 33) outlines several grounds, stated in the said Notice of Motion, on the basis of which the Defendants seek to have this proceeding dismissed.
   
4. During the course of arguing the application, aforesaid, the Defendants practically abandoned all the other grounds and placed heavy reliance on the ground that this proceeding ought to be dismissed as the Plaintiff lacked standing on account of his contract of employment having expired on the 23^rd of June 2023, less than two months after leave was granted.
   
5. The Defendants rely on the Supreme Court case of Green Wood (PNG) Ltd v Pulie Anue Timber Co. Ltd (2023) PGSC 9; SC2361, for their argument that the Plaintiff’s contract of employment having come to an end, the judicial review proceedings are not maintainable or sustainable and ought to be dismissed.
   
6. The brief facts in the case of Green Wood, cited supra, are that the Appellant had a Logging and Marketing Agreement (LMA) with the Second Respondent and a logging license from Papua New Guinea Forest Authority (PNGFA). The Agreement and the Logging license both expired when the appeal was pending. The First Respondent filed an application to dismiss the appeal given the expiry of the Agreement and the Logging license. The Court held that the Appellant lost the standing to pursue the appeal when the LMA and Logging License expired.
   
7. The Plaintiff in this case, in response, resisted the application even as the Plaintiff’s Counsel Mr. Waisi conceded the strength of the arguments of the Defendants. He submitted that he hopes to ‘defuse’ the Defendant’s arguments by citing some case authorities that held the contrary view to that expressed in the Green Wood case.
   
8. Mr. Waisi, learned Counsel for the Plaintiff, referred the Court to the cases of Min Eremuge & Ors v Joseph Apa & The State (2023) PGNC 421 N10572; Rebeca Organn Kiage v Ronald Meketa & The State (2023) PGNC 230 N10315; Issac Lupari v Sir Michael Somare (2008) PGNC 121 N3476; Mison Asiki v Manasupe Zurenuoc & The State (2005) PGSC 27 SC797; Henry Wavik v Martin Balthasar (2013) PGNC 90 N5272; Michael Mondia v Richard Sikani (2007) PGNC 107 N3256 as supporting the view that a Plaintiff or Applicant whose term of contract of employment expires after being granted leave, but before the hearing of the substantive judicial review, does not lose his or her standing to proceed to the substantive review stage.
   
9. I have read all the cases referred to by Mr. Waisi, none of which addressed the issue similar to the present, as indicated above. Consequently, all the authorities Mr. Waisi cited are inapplicable.
   
10. I also point out that sitting as a judge of the National Court and given the superiority of the Supreme Court over the National Court, I am bound by the decision of the Supreme Court, unless it is possible to distinguish the two cases, which in this case it is not possible to do.
    
11. In this case having regard to the fact that the Plaintiff’s contract expired on the 23^rd of June 2023, I hold that the Plaintiff lacks standing to pursue the judicial review soon after his contact of employment came to an end.
    
12. In all the circumstances of this case this proceeding is liable to be dismissed, as I shall do in due course.
    
13. On the question of costs, the general rule is that cost follow the event. I see no reasons why the Plaintiff should not pay the Defendants costs.
    
14. In the result, this Court orders that:
    
    • (a) The First Plaintiff’s Notice of Motion filed on the 5^th of May 2023 and the entire proceedings are hereby dismissed.
      

(b) The Plaintiff shall pay the Defendants costs – such costs be agreed or taxed.
_______________________________________________________________
Tony Waisi Lawyers: Lawyer for the First Plaintiff
Wang Dee Lawyers: Lawyer for the Third, Fourth & Fifth Defendants
Office of the Solicitor General: Lawyers for the Sixth & Seventh Defendant